David Bellis and his son, Jacob, with horse Betty, who spontaneously smiled for a selfie.
Photograph: Mercury Press

The owner of a horse that photobombed a selfie taken by a father and son has demanded a share of a prize worth £2,000 that they won after entering the image into a competition.

David Bellis, 31, said his three-year-old son, Jacob, took the photo as they were out walking near their home in Prestatyn, north Wales, and they entered the picture into Thomson Holidays’ Made Me Smile competition.

After they scooped the main prize, a £2,000 holiday, the horse’s owner, Nicola Mitchell, contacted Thomson Holidays to complain, claiming Bellis should have asked for consent.

Bellis said: “I don’t understand why Nicola is so annoyed. I was on a public path that everyone uses to go to the local school and everyone sees the horse there.”

He added: “At first they thought I was winning £2,000 cash and said I should give them half, but it’s a holiday so they are not getting a penny. I’m not giving them the holiday either. They would have to come on the holiday with me – and that isn’t happening unless we’re both in a saddle together on the horse.”

Mitchell, also from Prestatyn, bought the horse, Betty, for her daughter, Katelyne, three years ago. The family has taught Betty to stick out her tongue.

Mitchell said: “I was really annoyed to hear he had won a £2,000 holiday and had used a picture of our horse without our permission. He should have asked for our consent. There should be some token gesture as it is our horse that has really won them the holiday,” she said.

Mitchell added: “I didn’t even know that this competition was on. If I had known about it we would have entered and could have won as Betty is always sticking out her tongue.”

Wayne Beynon, a partner and intellectual property lawyer at Cardiff and London-based Capital Law, said: “The horse owner’s complaint doesn’t really hold up in law. The father and child were on a public footpath, so there is no issue of trespass.

“As the photographer, Jacob automatically owns copyright in the image and didn’t require permission of the horse’s owner to take the photo – similar to the way that photographers don’t require permission to take pictures of politicians, sports stars, or celebrities when they are out in public.”

There is no mention in Thomson Holidays’ terms and conditions of getting permission to take photographs of animals. Thomson Holidays later confirmed that Bellis could keep the money.